Rice v. Davis

7 Lans. 393 | N.Y. Sup. Ct. | 1872

By the Court—

Miller, P. J.

The title of the defendant to the real estate in controversy in this action depends mainly upon the question, whether there was a valid redemption of the same by La Mott Thomson, as holder of a certain judgment, or certain judgments, against the plaintiff.

It is claimed by the counsel for the plaintiff that the redemption was insufficient, and that the formalities of the . statute were not 'complied with, in the papers presented to the sheriff, for the purpose of redeeming the real estate sold by him. (3 R. S., 5th ed., 654, § 16.)

Various objections are urged to the validity of the alleged redemption, which I will proceed to consider. It is said that no redemption affidavit, but only a paper claimed to be a copy, was introduced in evidence. There was proof that an original affidavit was presented to the sheriff; that search had been made in the county clerk’s office for the redemption papers; that they could not be found, and their probable destruction by fire was shown, if they were ever there. Although the plaintiff reserved all legal questions and objections, as to the sufficiency, form and effect of the paper, the distinct point was not taken that the search made was insufficient, or that search should have been made at the sheriff’s office. As the evidence stood, I think that the copy was properly received in evidence.

It is urged that there was only a certified copy of a docket of one of the four judgments presented to the sheriff. It is, I think, a sufficient answer to this objection to say, that although the redemption was intended to be under several judgments, yet there being a duly certified copy of one of 'them, it was sufficient to make the redemption valid, so far as the plaintiff was concerned. (The People v. Ransom, 4 Den., 145, 147; Miller v. Lewis, 4 Coms., 554.) It was enough that one of the judgments was properly certified, and as this would entitle the owner to redeem, the remainder may be disregarded as unnecessary. The same remarks apply to so much of the affidavit as shows other judgments and states the sum total of all. As the affidavit specified-ihe amount due upon each one of them,.there could be no mistake and no false statement. ¡Nor does it follow that a creditor, redeeming from Thomson, would be obliged to pay the full amount of all the judgments, with interest; for those not properly authenticated clearly were not entitled to be paid. Even if such was the result, it is questionable whether the plaintiff is ■in a position to avail himself of an objection of this character.

A criticism is made upon the form of that portion of the affidavit which states that “the same are true copies of the original assignments to him.” Having previously stated that the affiant “ was the person to whom the above described judgments were assigned,” I think it may fairly be inferred that the word “same” refers to the assignments of the judgments. This is more manifest by the reference made to the copies of the original assignments, as well as the subsequent clause, “ that he has carefully compared them with such original assignments.” In considering the form of the copy affidavit, it must be borne in mind that it is only a copy of a lost paper, probably not entirely accurate or precisely like the original which was lost, and proper allowance must be made on that account. It is, I think, in substance, according to the statute, by all reasonable rules of interpretation and the authorities, and not liable to any objection upon the ground stated.

The assignments of the judgments were, I think, sufficiently proven, being duly verified by affidavit of the redeeming creditor, as required by that statute. Slight variations are not regarded as fatal. (See ex parte Newell,. 4 Hill, 608; Aylesworth v. Brown, 10 Barb., 167.)

The copy certificate, the original of which was produced upon the argument, in connection with the sheriff’s deed, establishes that the affidavit and the accompanying papers were properly presented to and left with the sheriff as required by law.

It is not important as to all of them, as we have seen, if one of the judgments was properly certified and the assignment duly executed; but I am inclined to think that the assignment by the cashier of the Bank of Whitestown was duly executed-. The cashier’s authority will be presumed, unless the contrary appears. (Bank of Vergennes v. Warren, 7 Hill, 91.) The assignments were sufficiently verified by the oath of the claimant, and it was not necessary, I think, that they should be filed in the county clerk’s office.

No other objections are made to the validity of the redemption papers which require remark.

It may be added, that the original sheriff’s certificate to Thomson (a copy of which is referred to in the case) is-produced upon the argument, and by statute is prima facie evidence of the facts therein stated. (3 R. S., 5th ed., 656, §§ 84, 85.) The regularity of the proceedings to redeem is also to be presumed from the recitals in the sheriff’s deed. (Hartwell v. Root, 19 Johns., 345.) The right to introduce documentary evidence upon the argument is abundantly established by authority. (2 Johns., 46; 5 Wend., 535; 13 Wend., 524.) If the defendant had rested his case after the introduction of the sheriff’s certificate and deed, his title would have been established without the redemption papers, until there was some rebutting testimony. The secondary evidence as to the redemption proceedings would, therefore, have been superfluous.

There is no force in the objection that the redemption was void because it was made out of the county of Madison, where the premises were situated and sold. The statute provides that redemptions, made “ on or after the last day of the fifteen months,” * * * “ shall be made at the sheriff’s office of the county in which the sale took place.” (3 R. S., 5th ed., 656, § 82; Gilchrist v. Comfort, 34 N. Y., 235:) The redemption here was not on or after, but before the last day, and therefore it was not made in violation of the provisions of the statute cited.

The offer to prove a release from Gerrit Smith to the plaintiff was properly overruled. The consideration upon which the release was to be given had entirely failed. The bond and mortgage which was to have been executed was not given, and hence it is apparent that the release from Smith never became valid and effectual.

hi or was the lien of the Thomson judgments, for the purpose of ‘redemption, affected by the homestead exemption claimed by the plaintiff. They were rendered before the sale of the real estate upon the Smith judgment, and the statute authorizes a redemption by any creditor or assignee “having a judgment rendered at any time before the expiration of fifteen months from the time of the sale. (3 R. S., 5th ed., 652, § 67.) The judgment or judgments upon which the redemption was claimed to have been made were clearly within the statute. While the act suspended a sale upon an execution, and prevented Thomson from selling by virtue of these judgments, it did not interfere with his right to redeem from the purchaser upon a sale upon a judgment docketed prior to the recording of the notice of exemption. (S. L. of 1850, chap. 260; Smith v. Brackett, 36 Barb., 571; Allen v. Cook, 26 id., 374-378.) In construing this statute we are not at liberty to extend its provisions beyond its plain intent, and as the title- passed to Smith after the expiration of a year, subject to the creditor’s right of redemption, and such redemption was made by Thomson, under whom the defendant claims title, the plaintiff had no right to recover. There was 'no error upon the trial and the judgment must be affirmed, with costs.

Judgment affirmed.